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M.C. v. Pavlovich

July 25, 2008

M.C., PLAINTIFF
v.
ROBERT J. PAVLOVICH, JR., ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge John E. Jones III

MEMORANDUM AND ORDER

This matter is before the Court on the motion to dismiss (Doc. 11) of defendants Marysville Borough and Marysville Police Chief Jacob J. Stoss, Jr. For the reasons set forth below, the motion will be granted in part and denied.

I. STANDARD OF REVIEW

The Borough and Chief Stoss move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss plaintiff M.C.'s complaint for failure to state a claim upon which relief can be granted. In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief."

Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965. A plaintiff must make "a 'showing' rather than a blanket assertion of an entitlement to relief", and "without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips, 515 F.3d at 232 (citing Twombly, 127 S.Ct. at 1965 n. 3). "[A] complaint must allege facts suggestive of [the proscribed] conduct, and the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1965, 1969 n.8.

Therefore, "stating a claim requires a complaint with enough factual matter (taken as true) to suggest the required element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965 n. 3).

On the other hand, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Id. at 231 (citing Twombly, 127 S.Ct. 1964-65, 1969 n.8). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.

II. BACKGROUND

With this standard of review in mind, the following are the facts derived from the complaint for the purposes of the current motion, accepting as true all factual allegations and construing the complaint in the light most favorable to the plaintiff. Id. at 231.

Defendant Robert Pavlovich was employed as a police officer with the Marysville Police Department from 2000 to 2007. (Compl. ¶ 8.) Prior to his employment with the Marysville Police Department, Pavlovich was employed by the police department for Manheim Township, Lancaster County, Pennsylvania. (Id. at ¶ 9.) In 1995, while employed by the Manheim Township Police Department, Pavlovich was charged with the indecent assault of a 13 year-old girl and corruption of minors. (Id. at ¶ 10.) As a result of these charges, Pavlovich was fired from the Manheim Township Police Department. (Id. at ¶ 11.) In 1999, Pavlovich began working again as a police officer, this time in Duncannon, Pennsylvania. (Id. at ¶ 12.) In that same year, however, he was fired again as a result of two complaints of sexual misconduct with minors. (Id.) The complaint alleges that members of the Marysville Borough Council and Chief Stoss were aware of Pavlovich's terminations from the Manheim Township Police Department and the Duncannon Police Department as well as his prior criminal charges of indecent assault and corruption of minors when they hired him as a Marysville police officer. (Id. at ¶ 21.)

During the period from July 2002 to March 2003, while employed as an officer of the Marysville Police Department, Pavlovich repeatedly committed sexual battery, indecent assault, and statutory rape against plaintiff M.C., who was 13 years-old, by forcing her to perform oral sex and other illegal sexual acts with him. (Id. at ¶ 13.) In 2005, when M.C. was 17 years-old, Pavlovich solicited her in an attempt to again commit sexual battery, indecent assault, and statutory rape. (Id. at ¶ 14.) Both of these incidents occurred while M.C.'s father was deployed overseas with the United States military. (Id. at ¶¶ 13, 14.) During the time he was employed by the Marysville Police Department, Pavlovich also engaged in sexual battery, indecent assault, statutory rape, involuntary deviate sexual intercourse, unlawful contact with minors, corruption of minors, and bribery involving 14 other minor girls. (Id. at ¶ 15.)

Pavlovich used his position as a Marysville police officer to force these underage girls to perform illegal sexual acts by threatening them with prosecution or offering not to prosecute them on other offenses. (Id. at ¶ 16.) Pavlovich also used Borough computers to communicate with minor girls in order to instruct them to sneak out of their homes at night and to meet him to engage in these illegal sex acts. (Id. at ¶ 17.) Further, Pavlovich, while on duty, traveled in his Borough police car to the homes of underage girls in order to engage in illegal sexual acts with them. (Id. at ¶ 18.)

The parents of several of the minor girls assaulted by Pavlovich attempted to bring the incidents to the attention of government officials. One girl's father contacted the Marysville Police Department, after which Pavlovich's contact with the girl stopped; however no investigation was made and no action was taken against Pavlovich. (Id. at ¶ 19.) The mother of another girl who had been the subject of Pavlovich's sexual advances reported the incidents to Chief Stoss, but was told nothing could be done unless there was a recording of Pavlovich's sexual advances toward the girl. (Id. at ¶ 20.) Again, no investigation was made and no action was taken against Pavlovich. (Id.) The mother of a third girl finally contacted the Pennsylvania State Police. (Id. at ¶ 22.) ...


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